United States v. Haney, C.A.A.F. (2006)

UNITED STATES, Appellee
v.
Thomas M. HANEY, Lance Corporal
U.S. Marine Corps, Appellant
No. 05-0047
Crim. App. No. 9900878
United States Court of Appeals for the Armed Forces
Argued May 3, 2005
Decided September 29, 2006
GIERKE, C.J., delivered the opinion of the Court, in which
ERDMANN, J., joined. CRAWFORD, J., filed a separate opinion
concurring in part and dissenting in part, and concurring in the
result. EFFRON, J., filed a separate opinion concurring in part
and in the result. BAKER, J., filed a separate opinion
concurring in part and dissenting in part, and concurring in the
result.
Counsel
For Appellant: Lieutenant Stephen C. Reyes, JAGC, USNR
(argued); Lieutenant Commander Eric J. McDonald, JAGC, USN (on
brief); Major Charles R. Zelnis, USMC.
For Appellee: Colonel William K. Lietzau, USMC (argued);
Commander Charles N. Purnell, JAGC, USN, Major Raymond E. Beal
II, USMC, and Lieutenant Mark H. Herrington, JAGC, USNR (on
brief).
Military Judge:
L. L. Jowers
This opinion is subject to revision before final publication.
United States v. Haney, No. 05-0047/MC
Chief Judge GIERKE delivered the opinion of the Court.

INTRODUCTION
This case presents two issues.
We granted review of one
issue assigned by Appellant and specified a second issue.1

The assigned issue asks us to determine whether trial
counsels closing argument included an improper comment on
Appellants invocation of his Article 31, Uniform Code of
Miltary Justice (UCMJ)2 rights to terminate an interrogation and
to seek the assistance of legal counsel.
In the unique factual
context of this case, even if we assume error in the trial

counsels argument, we hold that any error was harmless beyond a
reasonable doubt.
The specified issue requires this Court to address whether
appellate defense counsel was ineffective in requesting multiple
enlargements of time at the lower court - which ultimately
The granted issue is:

I. WHETHER TRIAL COUNSEL COMMITTED PLAIN ERROR BY
IMPROPERLY COMMENTING ON APPELLANTS EXERCISE OF ARTICLE 31
RIGHTS.
This Court specified the following issue:

II. IN LIGHT OF TOOHEY V. UNITED STATES, 60 M.J. 100
(C.A.A.F. 2004) AND DIAZ V. JUDGE ADVOCATE GENERAL OF THE
NAVY, 59 M.J. 34 (C.A.A.F. 2003) WHETHER DEFENSE COUNSELS
MULTIPLE REQUESTS FOR EXTENSIONS OF TIME CONSTITUTE
INEFFECTIVE ASSISTANCE OF COUNSEL.
United States v. Haney, 61 M.J. 19 (C.A.A.F. 2005).
2
10 U.S.C. 831 (2000).

2
resulted in over seven years of appellate delay.
We address
this issue in light of our recent holding in United States v.

Moreno,3 that further developed the cases identified in the
specified issue, to determine if Appellant was prejudiced by any
deficiency in appellate representation.
Although we conclude
that the extraordinary unexplained delay resulted in a due

process violation, we also conclude that this error was harmless
beyond a reasonable doubt.
In light of this conclusion, we hold
that that any deficiency by appellate defense counsel at the

lower court was not prejudicial, and therefore, Appellant was
not denied effective assistance of counsel.
We now address these two issues in turn.
I.
COMMENTARY ON APPELLANTS ARTICLE 31, UCMJ, RIGHTS

A.
BACKGROUND AND TRIAL DEVELOPMENTS
Appellant was suspected of drug misconduct.
Master
Sergeant (MSgt) Crecilius, a Criminal Investigation Division

(CID) investigator, initially interviewed Appellant as to his
alleged drug misconduct.
At the outset of this interview,
Appellant waived his Article 31, UCMJ, rights, agreed to talk to

the investigator, and initially denied using marijuana.
However, Appellant later invoked his Article 31, UCMJ, rights,
requested an attorney, terminated the interview, and departed.
Appellant returned to his barracks room.
63 M.J. 129 (C.A.A.F. 2006).

3
About three hours later, Appellant on his own initiative

went back to the CID.
Staff Sergeant (SSgt) Deal, an
investigator with the CID, began a second interrogation of

Appellant.
Appellant waived his Article 31, UCMJ, rights and
confessed to wrongfully using marijuana on one occasion.

Additional investigation developed evidence relating to several
offenses, and later Appellants case was referred to a special
court-martial.
A court-martial panel of officer and enlisted members
convicted Appellant, contrary to his pleas, of two
specifications of marijuana use, one specification of
distribution of marijuana, and one specification of making a
false official statement.4
As part of the trial on the merits before a court-martial
panel, Appellant challenged the truthfulness of his confession
to one wrongful use of marijuana offense.
The defense proffered
the theory that Appellant fabricated his confession to drug use

because of a coercive interrogation and in order to avoid harsh
This was in violation of Articles 107 and 112a, UCMJ, 10

U.S.C. 907, 912a (2000). Appellant was sentenced to 107 days
confinement, forfeiture of $600 pay per month for six months,
reduction to pay grade E-1, and a bad-conduct discharge. The
convening authority approved the adjudged sentence. The United
States Navy-Marine Corps Court of Criminal Appeals affirmed the
findings and sentence in an unpublished opinion. United States
v. Haney, No. NMCCA 9900878 (N-M. Ct. Crim. App. June 21, 2004).
4
punishment.5
In his opening statement, the trial defense counsel
stated to the panel:

Mr. Haney, incidentally, is going to testify. So at least
youll know that. That is the defendant. The reason is
youre going to hear evidence from him as to the promises
being made and the fact that, if you say a couple of
things, dont worry about it, everything will go away.
Youre going to hear that he went to see the investigating
officer twice; the first time he walked out because of
these alleged promises, and then he came back because there
was a promise that if he did not state his involvement he
would be tossed in the brig, but if he did make a statement
as to anything that was talked about here, dont worry
about it, nothing is going to happen . . . .
The prosecution case included two pieces of evidence to
prove the drug offenses:
testimony concerning Appellants
signed confession to one use of marijuana, and testimony from

members of Appellants battalion corroborating Appellants
alleged marijuana use and distribution.
The first prosecution witness, SSgt Deal, an investigator
with CID, testified regarding Appellants confession to smoking
marijuana on one occasion.
SSgt Deal testified that he gained
information that Appellant, as well as other members of

Appellants battalion, were allegedly using drugs.
Because of
this information, SSgt Deal interrogated Appellant on June 20,

1996.
SSgt Deal testified that he properly advised Appellant of
At trial, defense counsel did not make a motion to suppress

Appellants confession to SSgt Deal. The coerced confession
theory was presented only to the panel during presentation of
the case on the merits.
5
his Article 31, UCMJ, rights and Appellant waived his rights,
and provided [the incriminating] statement.
In cross-examination of the Government witnesses, the
defense attempted to bolster the theory, presented in the
defenses opening statement, that Appellants confession to one
incident of marijuana use was fabricated as a result of CID
coercion.
This line of questioning related to alleged
conditional promises of leniency that interrogators made to

Appellant if he admitted to wrongful drug use.
Later, during the defenses case-in-chief, trial defense
counsel elicited from Appellant other circumstances regarding
the interrogation of Appellant, in general, and Appellants
prior invocation of his Article 31, UCMJ, rights, in particular.
Appellant testified that MSgt Crecilius first attempted to
interview him about his alleged wrongful drug use.6
Appellant
testified that MSgt Crecilius explained Appellants five

rights, and asked Appellant if he wish[ed] to talk.
According to Appellant, MSgt Crecilius then asked Appellant
whether he was involved with smoking marijuana with members of
his battalion.
Appellant stated that he denied smoking
marijuana at that point, and requested an attorney.
Appellant
stated that after he left the room, CID agents took his
MSgt Crecilius did not testify, but on cross-examination, SSgt

Deal corroborated MSgt Creciliuss presence at an initial
meeting prior to his meeting with Appellant.
6
fingerprints and his photograph, and he returned to his barracks

room.
Appellant further testified that the investigators
threat that he would be placed into confinement if he did not

give them information induced him later to return to CID and
falsely to confess to SSgt Deal.7
In his initial closing argument, trial counsel addressed,
and attempted to rebut, the defense assertion that Appellant had
been induced to make a false confession.
Trial counsel argued:
[Appellant] says he gave a statement to avoid

confinement. Well, lets look at that. I mean I think
thats an interesting statement. Lets - this is an
important analysis that I think needs to be considered. He
gets his first rights warning from Master Sergeant
Crecilius and he invokes his right, he says, I want to see
an attorney. And he leaves the premises and what does he
do? He doesnt see an attorney, he goes to the barracks.
What would most people do in that situation if an
individual was truly innocent? Wouldnt they go see a
lawyer and get some sort of legal protection? Would they
come back and admit to guilt without the benefit of legal
advice? What is more reasonable is that if he knows hes
guilty, he understands that there may be witnesses out
there who can prove hes guilty, he has an incentive to
come back and try to minimize things by being as
cooperative as possible and hope that he gets some sort of
leniency. If he was innocent, the government is arguing,
he would have gone and seen a lawyer, and used that shield.
Emphasis added.
Defense counsel made no objection to these remarks.
Moreover, trial defense counsel, in his closing argument
repeated the false confession theory stating:
Appellant stated: I didnt want to end up in confinement so I

thought, well, if I go back and tell them what they want to
hear, I will not end up in confinement.
7
Then Deal says, well, were after big fish, this is just a
slap on the wrist, theres really nothing to worry about,
kind of thing. And again, you heard the comments from him
that I specifically read. Wouldnt that push and this is
what you have to examine. What does that mean in his mind?
. . . [a]nd heres a man - a young man never been exposed
to this kind of interrogation, so he goes back and thinks
about it, well, if nothing is going to happen, Ill give
them what they want.
II.
DISCUSSION
Referring to the adversarial trial setting, the Supreme

Court has stated that [i]t is important that both the defendant
and prosecutor have the opportunity to meet fairly the evidence
and arguments of one another.8
In both Robinson9 and Lockett v.
Ohio,10 the Supreme Court reaffirmed the principle that

prosecutorial comment must be examined in context . . . .11
In
both these cases, the Supreme Court held that a prosecutors

argument was not an impermissible comment regarding an accused
Fifth Amendment rights in light of the defense trial tactics in
the case.12
Consistent with this principle, this Court has also stated:
Trial counsel has the duty of prosecuting a case, and he is
permitted to comment earnestly and forcefully on the
8
United States v. Robinson, 485 U.S. 25, 33 (1988).

Id. at 33-34.
10
438 U.S. 586 (1978).
11
Robinson, 485 U.S. at 33; Lockett, 438 U.S. at 595. This
Court also has emphasized the importance of context in
evaluating a prosecutors argument stating the fundamental rule
that [a] prosecutorial comment must be examined in light of its
context within the entire court-martial. United States v.
Carter, 61 M.J. 30, 33 (C.A.A.F. 2005); see, e.g., United States
v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000).
12
Robinson, 485 U.S. at 33-34; Lockett, 438 U.S. at 595.
9
evidence, as well as on any inferences which are supported

reasonably by the testimony. He may strike hard blows, but
they must be fair. If his closing argument has a tendency
to be inflammatory, we must make certain it is based on
matters found within the record. Otherwise it is improper.
The issues, facts, and circumstances of the case are the
governing factors as to what may be proper or improper.
We, therefore, must evaluate the argument in the light of
this record.13
Appellant asserts that the Governments closing remarks
amounted to using his invocation of Article 31, UCMJ, rights as
substantive evidence against him, in violation of Military Rule
of Evidence (M.R.E.) 301(f)(3).
M.R.E. 301(f)(3) provides:
The fact that the accused during official questioning and in

exercise of rights under the Fifth Amendment to the Constitution
of the United States or Article 31, remained silent, refused to
answer a certain question, requested counsel, or requested that
the questioning be terminated is inadmissible against the
accused.
M.R.E. 301(f)(3) reaffirms the long-standing general rule
that trial counsel cannot make capital of accuseds exercise of
his Article 31 rights.14
In light of this prohibition, we
13
United States v. Doctor, 7 C.M.A. 126, 133-34, 21 C.M.R. 252,

259-60 (1956) (citations omitted); see United States v. Ruiz, 54
M.J. 138, 143-44 (C.A.A.F. 2000).
14
See United States v. Kemp, 13 C.M.A. 89, 98, 32 C.M.R. 89, 98
(1962); see, e.g., Carter, 61 M.J. at 34 (holding that repeated
references to uncontroverted evidence of an accuseds guilt
throughout closing argument was reversible error, where the
comments were general, and not tailored to the defense
credibility argument); United States v. Gilley, 56 M.J. 113,
123 (C.A.A.F. 2001) (holding that there was no material
prejudice arising from trial counsels repeated references to an
9
consider Appellants assertion of improper trial counsel comment

on his invocation of constitutional rights in the context of the
trial developments in this case.15
We also note that there was no defense objection to trial
counsels argument.
This Court has stated regarding a trial
counsels argument:
Failure to object to improper argument before the military
judge begins to instruct the members on findings
constitutes waiver. In the absence of an objection, we
review for plain error. Plain error occurs when (1) there
is error, (2) the error is plain or obvious, and (3) the
error results in material prejudice to a substantial right
of the accused.16
In the view of the Government, the defenses theory that
interrogating agents coerced Appellant to obtain his confession
opened the door to the trial counsels fair argument rebutting
this theory.17
Arguably, this permissible argument would further
suggest that Appellant may not have felt the degree of coercion
that he claimed compelled him to sign a false confession.
After
accuseds invoking his right to counsel); Ruiz, 54 M.J. at 143

(holding that, where an accused took the stand to testify in his
own defense and denied culpability for the crime of shoplifting,
trial counsels commentary regarding this theory was made in
furtherance of counsels duty to . . . point out the
inconsistencies and unbelievable nature of appellants story).
15
See Carter, 61 M.J. at 33; Baer, 53 M.J. at 238 (stating that
the argument by a trial counsel must be viewed within the
context of the entire court-martial. The focus of our inquiry
should not be on words in isolation, but on the argument as
viewed in context.) (citations omitted).
16
United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005)
(citations omitted).
17
See Carter, 61 M.J. at 33; see, e.g., Gilley, 56 M.J. at 120-21
(citing Robinson, 485 U.S. at 32).
10
all, the interrogating agents respected Appellants assertion of

his right to consult with counsel and terminated the interview.
However, it was Appellants choice not to see a lawyer.
The defense asserts that trial counsel went beyond fair
rebuttal when he stated [if] he was innocent, the government is
arguing, he would have gone and seen a lawyer, and used that
shield.
Arguably, this statement does not address and rebut
the claim of false confession, but rather argues, as evidence of

Appellants guilt, his invocation of his right to consult a
lawyer and his failure to actually consult with a lawyer.
Accordingly, Appellant asserts that it was not fair rebuttal for
trial counsel to argue essentially that Appellant was guilty
because he did not consult a lawyer.
We need not presently resolve this matter.
It is
sufficient to say that we do not condone the entire argument of

the trial counsel in the unique facts of this case and caution
counsel against making such an argument.
However, even
assuming, arguendo, that trial counsels closing argument did

improperly comment on Appellants right to invoke his Article
31, UCMJ, rights and his constitutional right to consult with
counsel, we conclude that any error was harmless beyond a
reasonable doubt for two reasons.18
18
See, e.g., United States v. Young, 470 U.S. 1, 11-12 (1985)

(stating that [i]nappropriate prosecutorial comments, standing
11
First, the record establishes that Appellant raised the

matter of Appellants invoking his Article 31, UCMJ, rights and
constitutional right to counsel.
During his testimony on direct
examination, Appellant made the initial evidentiary disclosure

that he exercised his Article 31, UCMJ, rights.
The Government
did not inject Appellants invocation of his rights into

evidence.
Rather, the matter was brought out by trial defense
counsel to support the defense theory of the case that his

admission to one incident of marijuana use was fabricated in
response to false CID promises of leniency and coercion.
Second, in our view, the strength of the Governments case
did not hinge upon Appellants confession to one use of
marijuana.
Rather, the Government presented the members with
detailed testimony from two witnesses corroborating Appellants

criminal misconduct -- one of whom testified to having used
marijuana with Appellant, and another who placed Appellant at
the scene of an alleged incident of drug use.
Accordingly, we conclude that any error in the closing
argument was harmless beyond a reasonable doubt,19 and we affirm
the decision of the lower court finding no merit as to Issue I.
alone, [do] not justify a reviewing court to reverse a criminal

conviction obtained in an otherwise fair proceeding).
19
See United States v. Carpenter, 51 M.J. 393, 396 (C.A.A.F.
1999) (holding that, in light of the appellants failure to
object to the prosecutions rebuttal argument against him, any
error in the prosecutions argument was harmless).
12
III.
INEFFECTIVE ASSISTANCE OF COUNSEL
We next address the specified issue:
whether counsel was
ineffective in requesting multiple enlargements of time to

submit Appellants case for review.
Appellant argues that
counsels repeated requests for enlargements of time deprived

him of due process of law and amounted to ineffective assistance
of counsel.20
A.
LAW RELATING TO INEFFECTIVE ASSISTANCE OF COUNSEL
In United States v. Polk,21 this Court applied Strickland v.

Washington, 466 U.S. 668, 695 (1984) using a three-pronged test
to determine whether counsel has been ineffective:
(1) Are the
allegations made by appellant true; and, if they are, is there a

reasonable explanation for counsels actions in the defense of
the case?; (2) If the allegations are true, did the level of
advocacy fall[] measurably below the performance . . .
[ordinarily expected] of fallible lawyers?; and (3) If
ineffective assistance of counsel is found to exist, is . . .
there . . . a reasonable probability that, absent the errors,
the factfinder would have had a reasonable doubt respecting
guilt?
20
Appellant also alleged various claims of ethical violations

based on conflicts of interest resulting from changes in
attorneys assigned to his case. We find nothing in the record
indicating an actual conflict of interest between attorneys
assigned to his case which would have hindered the adequacy of
representation. See Mickens v. Taylor, 535 U.S. 162, 175 (2002)
(citing Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)).
21
32 M.J. 150, 153 (C.M.A. 1991).
13
The claim of ineffective assistance in this case is rooted

in the failure of appellate defense counsel to perform the
specific duty of filing pleadings at the lower court in a timely
manner.
We will evaluate this claim as we do a claim of a
failure of counsel to perform other duties such as to make a

motion or to suppress evidence.
Therefore, Appellant must show
that there is a reasonable probability that he was prejudiced by

this alleged deficiency of appellate counsel.22
Because the ultimate question of prejudice arising from the
alleged ineffective assistance of counsel is closely tied in
this case to the issue of appellate delay, we analyze the
specified issue in light of our recent holding in Moreno.23
Appellant asserts that the seven years of appellate delay
resulted directly from the deficient performance of appellate
counsel.
Attributing the languishment of his case to inadequate
staffing of appellate counsel, Appellant asserts that the

failures by the Government led to a system of appellate review
that diminished rather than preserved Appellants rights.
We
proceed to apply our recent holding in Moreno to evaluate

whether there was a due process violation in this case and, if
so, whether Appellant was prejudiced.
22
See United States v. McConnell, 55 M.J. 479, 481 (C.A.A.F.

2001); United States v. Napoleon, 46 M.J. 279, 284 (C.A.A.F.
1997).
23
63 M.J. at 141.
14
B.
APPLICABILITY OF UNITED STATES V. MORENO
In Toohey v. United States,24 this Court identified four

factors in determining whether post-trial delay violates due
process rights:
(1) length of the delay; (2) reasons for the
delay; (3) appellants assertion of his right to a timely

appeal; and (4) prejudice to the appellant.25
Moreno, this Court explained:
More recently in
Once this due process analysis
is triggered by a facially unreasonable delay, the four factors

are balanced, with no single factor being required to find that
post-trial delay constitutes a due process violation.26
1.
Length of the delay
We note at the outset that this case presents a

particularly egregious delay - 2,639 days.
This translates to
over seven years from sentencing to the Court of Criminal

Appeals opinion.27
In accordance with Moreno, we conclude this
24
60 M.J. 100 (C.A.A.F. 2004). In Toohey, this Court held that

the appellant established a threshold showing of facially
unreasonable delay, even without showing prejudice. Id. at 104.
The Court remanded the case to the Navy-Marine Corps Court of
Criminal Appeals for it to determine whether the lengthy delay
violated the appellants Fifth Amendment right to due process
and whether the delay warranted some form of relief. Id.
25
Id. at 102 (deriving these factors from the Supreme Courts
speedy trial analysis in Barker v. Wingo, 407 U.S. 514, 530
(1972)).
26
63 M.J. at 136.
27
It is also noteworthy that it took 1,179 days (approximately
three years, two months) for the briefs to be filed after the
Court of Criminal Appeals docketed the case. After the case was
submitted, it took over 654 days (approximately one year, nine
months) to decide the case.
15
delay is facially unreasonable, and we proceed to perform a full

due process analysis.28
2.
Reasons for the delay
Here, we focus on the degree of the Governments

responsibility for the delay, as well as on any factors
attributable to an appellant.29
Appellate counsel assigned to
Appellants case requested a total of twenty-three enlargements

of time.30
From the standpoint of Moreno, we do not weigh this
factor against Appellant.31

Indeed, we have held that where a lack of institutional
vigilance causes a case to languish on appeal, an appellant is
effectively denied . . . his statutory right to the free and
timely professional assistance of detailed military appellate
defense counsel.32
28
Moreno, 63 M.J. at 136.

Id.
30
Appellate counsel was first assigned to Appellants case in
June 1999. The first attorney assigned as appellate defense
counsel requested a total of eighteen requests for enlargement
of time. This attorney was transferred from the Appellate
Defense Division. In August 2001 or thereabout, the next
attorney took over Appellants case, and requested five
enlargements of time. Thus, Appellants counsels requested a
combined twenty-three enlargements of time prior to filing a
brief.
31
Id. at 137.
32
See Article 70, UCMJ, 10 U.S.C. 870 (2000); United States v.
Dearing, __ M.J. __ (21) (C.A.A.F. 2006) (holding that
[c]onsistent with our decisions in Diaz and Moreno, we decline
to hold Appellant responsible for the lack of institutional
vigilance which should have been exercised in this case); see
Diaz v. Judge Advocate General of the Navy, 59 M.J. 34, 39-40
(C.A.A.F. 2003).
29
16
3.
Assertion of the right to a timely review and appeal
We observe that Appellant did not assert his right to a

timely review and appeal before this case arrived at this Court.
However, the underlying ineffective assistance of counsel
allegation relates to the appellate defense counsel improperly
requesting an excessive number of enlargements at the lower
court.
In light of this action by Appellants appellate defense
counsel, we cannot fault Appellant for failing to assert his

right to a timely review.
Accordingly, we do not weigh this
factor against Appellant.

4.
Prejudice from the delay
A final factor is any prejudice either personally to the

appellant or the presentation the appellants case that arises
from the excessive post-trial delay.33
We have determined that
Appellant received only 107 days of adjudged confinement and has

brought no claim of oppressive incarceration.
Appellant was out
on appellate leave during the delay period, and thus, has no

meritorious claim of particularized anxiety.34
5.
Conclusion - Barker factors
Under Moreno, we balance the factors to determine whether

Appellants due process rights were violated.
are concerned with two main factors.
In this case, we
First, the length of the
delay in this case is one of the longest we have seen - seven

33
34
Moreno, 63 M.J. at 138-39.

Dearing, ___ M.J. at ___ (18); Moreno, 63 M.J. at 140.
17
years.
Secondly, this inordinate delay is unexplained.
Neither
the appellate defense counsels repeated requests for extensions

of time nor the mere circumstance of an extremely large caseload
adequately explains this unreasonable delay.35
Although we
conclude Appellant suffered no prejudice under the factors set

forth in Barker, we conclude the egregiousness of the
unexplained delay in this case was such that the perception of
fairness of the military justice system is potentially
jeopardized.36
Accordingly, we find a due process violation.37

6.
Relief
Having found a due process violation, we now test for harm

and prejudice.38
Based on our analysis under Issue I, the
present case does not involve either the denial of properly and
timely relief on another meritorious issue or particularized
anxiety or hardship that might arise from a rehearing.
Moreover, based on our review of the entire record, we conclude
that there is not any cognizable prejudice arising from the
35
The Governments motions to file the declarations of Commander

S. D. Rhoades and Mr. Robert Troidl are granted, and we have
considered the contents of those declarations.
36
United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006)
(holding that where there is no finding of Barker prejudice, we
will find a due process violation only when, in balancing the
other three factors, the delay is so egregious that tolerating
it would adversely affect the publics perception of the
fairness and integrity of the military justice system); United
States v. Harvey, __ M.J. __ (28) (C.A.A.F. 2006).
37
Harvey, __ M.J. at __ (28).
38
Id.
18
delay in this case.39
Appellant served only 107 days of
confinement and was likely released on appellate leave by the

end of June 1997.
We therefore conclude the delay in this case
was harmless beyond a reasonable doubt.40
In light of this
conclusion, we revisit the issue of ineffective assistance of

counsel.
In order to prevail on the prejudice prong of an
ineffective assistance of counsel claim, an appellant must
ultimately show that the deficient performance prejudiced the
defense.
41
Based on the analysis above, and guided by Moreno,
we conclude that Appellant was not prejudiced by any deficiency

in the appellate representation at the lower court.
Therefore,
we hold that Appellant was not denied the effective assistance

of counsel.42
39
Cf. Dearing, __ M.J. at __ (28-29) (concluding prejudice arose

from counsels inefficacy because appellant raised a meritorious
claim on appeal, for which this Court granted relief).
40
In United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006),
this Court acknowledged that [a]s a general matter, we can
dispose of an issue by assuming error and proceeding directly to
the conclusion that any error was harmless. We proceeded in
Allison to assume a denial of a right to speedy review and
concluded that the error was harmless. Id. at 371. In light of
our conclusion of harmless error in the present case, we could
have followed this approach. But the appellate delay here is
the longest this Court has recently reviewed. The particularly
egregious delay - 2,639 days - invites the detailed due
process analysis we present in this opinion.
41
Strickland, 466 U.S. at 687.
42
But see Dearing, __ M.J. at __ (26).
19
DECISION
As to the assigned issue, the holding of the United States
Navy-Marine Corps Court of Criminal Appeals is affirmed.
As to
the specified issue, we answer the question in the negative.

The decision of the United States Navy-Marine Corps Court of
Criminal Appeals is affirmed.
20

CRAWFORD, Judge (concurring in part, dissenting in
part, and concurring in the result):
The majority overlooks the fundamental nature of our
adversary system and precedent from this Court and the Supreme
Court, and gives little advice to the bench and bar that is
helpful.
I agree with the result but dissent from part of the
rationale.
It is important to separate what was proper prosecution
argument from what was improper.
Based on the opening
statements and examination of the witnesses, the prosecution

could legitimately rebut the defense argument that Appellants
statement was coerced by arguing the background facts
surrounding the rights warnings statements, Appellants
termination of the interrogation, and his voluntary return to
the police to give a statement.
However, it would be improper
to argue that a truly innocent individual would see a lawyer,

whereas a guilty person has an incentive to come back and try
to minimize things.
The first approach is permissible.
The
latter is impermissible.
The first comment and its expansion when placed in context
is clearly reasonable.
The best evidence any counsel can have
is the statement of the party opponent, in this case,

Appellants confession.
The defense counsel recognized that and
sought to discount its impact by using the small window of

urinalysis testing.
When the defense seeks to use the Fifth
Amendment, Article 31, Uniform Code of Military Justice (UCMJ),

10 U.S.C. 831 (2000), and the Military Rules of Evidence as a
sword, the prosecution has an absolute right to respond with
fair rebuttal.
The prosecutors statement placed in context constitutes
fair rebuttal to the defense theory of the case which began with
defense counsels opening statement:
Youre also going to hear from -- Mr. Haney,
incidentally, is going to testify. So at least youll
know that. That is the defendant. The reason is
youre going to hear evidence from him as to the
promises being made and the fact that, if you say a
couple of things, dont worry about it, everything
will go away. Youre going to hear that he went to
see the investigating officer twice; the first time he
walked out because of these alleged promises, and then
he came back because there was a promise that if he
did not state his involvement he would be tossed in
the brig, but if he did make a statement as to
anything that was talked about here, dont worry about
it, nothing is going to happen. So thats the issue
regarding Sergeant Deal who handled the investigation.
And, again, youre going to hear all of this.
PROSECUTION CASE
Private Crist D. Pugh testified that he had seen Appellant
use marijuana over a dozen of times.
This happened in
Covington, Kentucky, on a weekend, July 28, 1995, through July

30, 1995.
When they arrived in Covington, they met Appellants
girlfriend, Lance Corporal Melissa D. Sandlin, at a hotel room

with five or six people and smoked seven or eight joints of

marijuana that Appellant brought.
Between August 18, 1995, and
the August 20, 1995, they again drove to Covington and met
Appellants friend, Paul, and Appellants girlfriend.
they shared one joint.
This time
Pugh and Appellant went to Covington
again on the weekend of October 20, 1995, through October 22,

1995.
They were accompanied by Lance Corporal Brumley and Lance
Corporal Winters on the trip.
They stayed at the same hotel and
used marijuana on various occasions.
At the hotel, they were
met by Lance Corporal Sandlin and purchased marijuana from

Sandlins uncle.
On February 2, 1996, through February 4, 1996, Pugh and
Appellant went back to Covington, Kentucky, with Brumley.
This
time they met with Paul and another friend, Tim, Appellants
girlfriend, and another female.
various occasions.
They smoked marijuana on
During the weekend of May 17, 1996, through
May 19, 1996, Pugh, Appellant, and Appellants girlfriend went

on a camping trip to Aquia Landing Campground, where they used
marijuana.
During the months of February 1996 and March 1996,
they went to Stafford, Virginia, where they smoked marijuana.

A camping trip in May 1966 involved Appellant, Brumley,
Lance Corporal Williams, Private First Class Crouse, Lance
Corporal Smith, Lance Corporal Plummer, Pugh, and another
private first class.
Plummer brought the marijuana along, and
it was smoked by Pugh, Appellant, Plummer, and Brumley.

Private Brian T. Grimm also testified on behalf of the
Government.
He corroborated Pughs testimony that the group,
including Appellant, went to Covington, Kentucky, in April 1995,

where they partied, drank, and smoked marijuana.
This testimony
was cut short because the military judge would not allow the
Government to refresh his memory about his statement he made to
the Criminal Investigation Command (CID) on June 20, 1996.
Private Grimm then testified about the statement.
DEFENSE CASE
To counter the Governments case, the defense counsel used
a multiple approach to defend against the charges in this case.
First, the defense presented evidence of a negative urinalysis
sample which was taken close in time to one of the supposed
marijuana smoking events.
Second, the defense presented
several friends and acquaintances of Appellant and his

girlfriend to testify they never observed Appellant consuming
marijuana.
Third, in an attempt to negate Appellants
admissions to law enforcement officials, the defense attempted

to demonstrate that Appellants statements were coerced and
thus, unreliable.
The defense introduced Defense Exhibit B, which was a
urinalysis sample taken on May 29, 1996, showing a negative
result.
A positive result for marijuana in urine is dependent
on when the consumption occurred in relation to rendering the

sample and the amount of consumption.
A negative urinalysis
would not necessarily show Appellant did not ingest marijuana on

May 14 or from May 17 through May 19.
An expert testified that
there might be a positive result within a six-day window, but

not within a ten-day window.
The expert could not be positive
without knowing more about the regularity of the consumption of

marijuana and the potency of the marijuana or THC
(tetrahydrocannabinol).
Appellants girlfriend testified that Pugh and Appellant
did visit her in her hometown of Covington, Kentucky, but none
of them used marijuana.
She did admit that she talked to
Appellant the night before her testimony and discussed the case
with him.
The defense then called Mr. Paul William Plageman, who has
known Melissa for about five or six years and lived in Covington
for twelve years.
He went to school with Appellant and Melissa.
He remembered Appellant visiting Covington a couple of weekends

in July, but he also remembered some visits from February 2
through February 4, but he testified that there was no
involvement with marijuana.
Other individuals present on those weekends included
Timothy Feeback and others.
Mr. Feeback testified he lived in
Crescent Springs, Kentucky, and knew Appellant, Appellants

girlfriend, and Paul Plageman.
He also remembered a weekend

that Appellant visited home in February 1996; Feeback admitted
drinking, having a good time, but he testified that no one was
smoking marijuana.
and Appellant.
He mentioned the presence of Brumley, Pugh,
He also testified that Appellant had visited
with Pugh and Brumley the weekend of May 17, 1996, through May
19, 1996.
He also mentioned another individual who was there
that weekend was Krista Normeir.
Again there was no smoking of
marijuana smoked during that weekend.

Staff Sergeant Clay Starner testified for the defense.
He
knew Appellant from 1994 through 1995, when they were involved
in preparing for a marathon.
That preparation continued from
October 1994 through October 1995.
This evidence was submitted
to establish that Appellant was absent from some of the weekends

mentioned by Grimm and Pugh.
Appellant was the last witness to testify for the defense.
He testified concerning the statement that was taken by Staff
Sergeant Deal.
Appellant indicated that he was advised of his
Article 31, UCMJ, rights, and that he initially invoked his

rights and was allowed to leave the police station.
He went to
the barracks and thought about it for an hour and a half to two
hours and then went back to tell them what they want[ed] to
hear.
In his statement, Appellant admitted that he was smoking
marijuana at the Aquia Landing Campground.
He also implicated
his friend, Pugh, in the marijuana use as well as several

others.
Sergeant Wikel encouraged Appellant to make the
statement, telling him:
This is better you do it this way.
The CO wants cooperation.
Both Wikel and Deal told him:
Once
the CO sees that youre cooperating with our investigation

nothing is going to happen to you from here; itll just [be] a
slap on the wrist.
Appellant admitted on the witness stand that he lied about
smoking marijuana to avoid confinement.
The military judge
asked Appellant why he didnt come forward earlier about Pughs

marijuana use if he knew that the Marine Corps didnt tolerate
marijuana.
He testified he did not want to squeal on his
friends, as that would not be fair.
He explained that the
reason he reported his friends when he went back to see Wikel

and Deal was to get the investigators off his back.
The
military judge refused to let the members ask questions about

whether Appellant admonished his friends about the no-tolerance
policy in the Marine Corps and whether he saw Pugh smoking
marijuana earlier.
CLOSING ARGUMENT
Trial counsels comment on Appellants failure to contact a
lawyer after invoking his right to counsel and stopping the
police interview was as follows:
He says he gave a statement to avoid confinement.
Well, lets look at that. I mean I think thats an
interesting statement. Lets -- this is an important

analysis that I think needs to be considered. He gets
his first rights warning from Master Sergeant
Crecilius and he invokes his right, he says, I want to
see an attorney. And he leaves the premises and what
does he do? He doesnt see an attorney, he goes to
the barracks. What would most people do in that
situation if an individual was truly innocent?
Wouldnt they go see a lawyer and get some sort of
legal protection? Would they come back and admit to
guilt without the benefit of legal advice? What is
more reasonable is that if he knows hes guilty, he
understands that there may be witnesses out there who
can prove hes guilty, he has an incentive to come
back and try to minimize things by being as
cooperative as possible and hope that he gets some
sort of leniency. If he was innocent, the government
is arguing, he would have gone and seen a lawyer, and
used that shield.
Emphasis added.
The United States Navy-Marine Corps Court of Criminal
Appeals said:
The trial counsels argument regarding the
accuseds waiver of his rights and his written
statement, taken in the context of the defense factual
case, was not patently unreasonable. It is not error
for the Government to comment upon the accuseds
failure to support his claims. United States v. Webb,
38 M.J. 62, 66 (C.M.A. 1993).1
The second part of the assigned issue concerns trial
counsels comments on Appellants failure to call certain
witnesses to support his defense.
In his closing argument, the
trial counsel stated:

It is interesting to note the absence of certain
witnesses here today. You have before you a statement
identifying Brumley, Lincoln, and Plummer, as being
1
United States v. Haney, No. 9900878, slip op. at 5 (N-M. Ct.

Crim. App. June 21, 2004).
8

present at the scene of the Aquia Landing use. And
they certainly could have come in and supported what
Lance Corporal Haney has said to you. The question
becomes, why are they not here?
Later, after the defense counsel argued, trial counsel returned
to this point:
The third point, and final point, that I want to make
is the defense counsel still has not provided an
explanation as to why Brumley, Lincoln, Plummer, were
not here to testify for their client --MJ: Captain Rosenberg, I did not say anything the
first time you mentioned this, and the defense did not
object, but Im going to make a sua sponte ruling not
to allow you to make this kind of argument. The
burden of proof is on the government to establish each
and every element of the offense. The defense has no
requirement to disprove any of the elements or to
bring any evidence forward.
The members are instructed not to allow this type of
argument to shift the burden to the defense and you
must not speculate as to why various witnesses named
are not present. The defense is under no obligation
to bring forth any witness.
TC:
I understand your ruling, maam.
The prosecutors comment on Appellant invoking his rights

was designed to show that his statement, the second time he went
to the CID office, was not coerced.
The first time he was at
the CID office, he invoked his rights and was released and
allowed to go back to the barracks.
returned to the CID office.
He then voluntarily
The aim of the prosecutors
argument was to rebut Appellants suggestion that the confession

the second time was coerced.
Appellant was not coerced -- he

could have stopped the interrogation at any time, just as he did
the first time, by invoking his right to counsel.
In addition,
the prosecutors comment about missing witnesses was meant to be

facetious, since the trial counsel was essentially saying that
the defense had already called numerous witnesses to say they
had never saw Appellant use marijuana -- why not call some more
witnesses to say essentially the same thing?
DISCUSSION -- ISSUE I
The Government, in pointing out that Appellant knew that he
could obtain counsel, was making the classic rebuttal argument
to the defense theory of the case.
The defense theory was that
Appellants confession was involuntary and should be rejected.

The Governments argument was in response to this theory.
The
Government counsel was trying to demonstrate that Appellant was

well aware he could stop the interview process by invoking his
rights at any point, because he had already successfully done
just that when they initially talked to him.
In general, the majority is correct that the invocation of
rights under the Fifth Amendment or Article 31, UCMJ, would be
inadmissible against an accused.
But, when an appellant argues
there was a coercive atmosphere, the government should be

allowed to negate that argument by presenting evidence of the
prior warnings, invocation of rights, termination of the
interrogation, and the appellants voluntarily reinitiating the
10

interrogation.
The right against self-incrimination may not be
used as a sword to prevent the Government from putting in

context what actually occurred and to defend against Appellants
assertion that his statement was coerced.
OPENING STATEMENTS
The defense may open the door for rebuttal evidence in the
opening statement,2 direct examination,3 cross-examination,4 or
closing argument.5
When the facts mentioned in opening argument
are pursued throughout the trial, the door is effectively

open[] for a great deal of rebuttal evidence.6
In McAnderson, the defendants, all members of a Chicago
street gang, were convicted of various roles in a conspiracy to
commit terrorism.7
In his opening statement, counsel for one of
the defendants described the El Rukns . . . [as] a group of

people who banded together for brotherhood, discipline in their
See, e.g., United States v. Houser, 36 M.J. 392, 400 (C.M.A.

1993); United States v. Franklin, 35 M.J. 311, 317 (C.M.A.
1992). But see United States v. Turner, 39 M.J. 259, 262
(C.M.A. 1994) (stating that nothing more than a single passing
comment during defense counsels opening statement may not be
enough without more, to open the door) (emphasis added).
3
See, e.g., United States v. Beason, 220 F.3d 964, 967 (8th Cir.
2000) (after the defense sought to take advantage of the Bruton
rule -- the court held this opened the door for government
rebuttal evidence).
4
United States v. Havens, 446 U.S. 620, 627 (1980).
5
United States v. Young, 470 U.S. 1, 12 (1985); United States v.
Robinson, 485 U.S. 25, 32 (1988); Darden v. Wainwright, 477 U.S.
168, 178-82 (1986).
6
United States v. McAnderson, 914 F.2d 934, 946 (7th Cir. 1990).
7
Id. at 938.
11

lives, lives that were often chaotic, to put God in their
lives.8
Counsel next stated that some members of the El Rukns,
have been in trouble in the past. Some are still in

trouble. But thats no different than any other
organization whether it be lawyers, a group of Catholics,
or Jews, or Protestants or Muslims; its no different than
any other organization. I venture to say even the Knights
of Columbus have a few people in trouble every now and
again.
Id.
Counsel for the other defendants made similar assertions in
their opening statements.9

Thus, in McAnderson, the role of the organization was
pursued not only in the opening statement, but as part of the
defense case.
In rebuttal to these assertions, the prosecution
introduced evidence of drug transactions between the coconspirators and undercover agents.10
Some of this was
introduced as part of the prosecutions case-in-chief.11

exact rebuttal was not set forth in the opinion.
The
The evidence
of these drug transactions was meant to impeach the defendants

contention that the organization was fundamentally [a]
religious organization.12
In addition to the opening statement inviting a response,
direct examination may do the same.
examples is Beason.
One of the most recent
In Beason, the defense sought to take
Id. at 945.
Id.
10
Id. at 945-46.
11
Id. at 945 n.4.
12
Id. at 946.
9
12

advantage of the Bruton rule, which provides that at a joint
trial, a co-defendants confession that implicates the other
defendant is not admissible against that other defendant.
Id.
at 967; see Bruton v. United States, 391 U.S. 123, 126 (1968).
The Supreme Court held in Bruton that in limine instructions
would be inadequate because co-defendant B cannot test by crossexamination the evidence set forth in As confession.13
In
Beason, the Government had introduced evidence that Beason was

the kingpin who was selling drugs from his truck, hiding
hundreds of thousands of dollars in its inside compartments.14
Like most drug kingpins, he had some runners.15
Washington.
One of these was
At trial, the defense asked the agent, who took a
statement from Washington, whether the information they obtained

regarding who knew where the money was in the truck, came from
Washington, who had a prior drug arrest.16
The government
argued, and the trial judge agreed, that this opened the door
for the agent to testify about other information from Washington
that revealed the ownership of the truck, how the money was
collected, how the money was given to Washington, and who was
given directions concerning where to hide it in the truck.17
13
14
15
16
17
391 U.S. at 132.

Beason, 220 F.3d at 966.
Id. at 967-68.
Id.
Id.
13

Just as the opening statement, direct examination, or
cross-examination may open the door, or unlock the evidence
door, closing arguments may invite a response from an opponent.
In Robinson,18 the defense counsel in his closing argument told
the jury that the government had not allowed the defendant to
explain his side of the story and had breached its duty to be
fair.
After this argument, the prosecutor, in a hearing outside
the presence of the jury, contended that the defense had opened
the door.19
The judge agreed stating:
I will tell you what, the Fifth Amendment ties the

Governments hands in terms of commenting upon the
defendants failure to testify. But that tying of
hands is not putting you into a boxing match with your
hands tied behind your back and allowing him
to punch you in the face. That is not what it was
intended for and not fair. I will let you say that
the defendants had every opportunity, if they wanted
to, to explain this to the ladies and gentlemen of the
jury.20
The defense did not object, and in rebuttal, the prosecutor
stated that the government had complied with its obligation
to play fair.
[Defense counsel] has made comments to the extent
the Government has not allowed the defendants an
opportunity to explain. It is totally unacceptable.
He explained himself away on tape right into an
indictment. He explained himself to the insurance
investigator, to the extent that he wanted to. He
18
19
20
485 U.S. at 27.

Id. at 28.
Id. (quotation marks omitted).
14

could have taken the stand and explained it to you,
anything he wanted to. The United States of America
has given him, throughout, the opportunity to
explain.21
The court noted that [d]efense counsel did not object to
this closing and did not request a cautionary instruction.
Nonetheless, the court included in the jury instruction the
admonition that no inference whatever may be drawn from
the election of a defendant not to testify.22
In Young, the Supreme Court indicated that in order to
right the scale the prosecutor responded to the defense
counsels closing argument by expressing his personal opinion of
the defendants guilt, vouched for his own credibility and the
prestige of the prosecutors office, and exhorted the jury to
do [your] job.
The Supreme Court did not condone these
remarks but found they did not constitute plain error.23
The
role of the appellate court is to weigh the impact of such

remarks taking into account what prompted the remarks.24
However, the better remedy is for the trial judge to deal
with the improper argument of the defense counsel promptly and
thus blunt the need for the prosecutor to respond.25
Supreme Court in Young stated:
21
22
23
24
25
Id. (quotation marks omitted).

Id. at 28-29.
470 U.S. at 13.
Id.
Id.
15
The

Invited responses can be effectively discouraged by
prompt action from the bench in the form of corrective
instructions to the jury and, when necessary, an admonition
to the errant advocate.
. . . Arguably defense counsels misconduct could have
warranted the judge to interrupt the argument and admonish
him thereby rendering the prosecutors response
unnecessary.26
Justice Brennan, writing for himself and two others,
dissenting in part and concurring in part, stated I agree fully
with the Courts conclusion that federal prosecutors do not have
a right of reply to defense improprieties, but must instead
object to the trial judge and request curative action.27
However, he completely disagree[d] with the majoritys having
apparently adopted an invited error analysis.28
He noted the
majority rejects this asserted right of reply, emphasizing

instead that prosecutors have no license to make otherwise
improper arguments in response to defense rhetoric . . . .29
The Supreme Court concluded in Robinson that it did not
have to address the issue of plain error because there was no
error in the case.30
Justice Marshall (joined by Justice
26
Id. (citation omitted)

Id. at 22 (Brennan, J., dissenting in part and concurring in
part).
28
Id.
29
Id. at 23 (Brennan, J., dissenting in part and concurring in
part).
30
Robinson, 485 U.S. at 30.
27
16

Brennan) dissented because he believed the prosecutions
comments violated the Fifth Amendment.31
While Griffin v. California,32 holds that the prosecutor may
not on his own initiative, comment on the right to remain
silent, the Supreme Court in Robinson found no violation of the
privilege against compulsory self-incrimination where the
prosecutors reference to the defendants opportunity to testify
is a fair response to a claim made by defendant or his
counsel.33
In holding there was no plain error, the Supreme
Court in Young looked at the defense counsels opening salvo,

the jurys understanding of the response, and the overwhelming
evidence of guilt, and found there was no prejudice to the
defendant.34
Likewise, in Darden,35 the Supreme Court, in a 5-4 opinion,
examined the invited error doctrine and again found that,
although the defendants trial was not perfect, it was not
fundamentally unfair.
Much of the objectionable content was
invited by or was responsive to the opening summation of the

defense.36
Parts of that summation were as follows:
The Judge is going to tell you to consider the evidence or

the lack of evidence. We have a lack of evidence, almost
31
32
33
34
35
36
Id. at 37-45 (Marshall, J., dissenting).

380 U.S. 609, 615 (1965).
Robinson, 485 U.S. at 32.
See 470 U.S. at 17-20.
477 U.S. at 183.
Id. at 182.
17

criminally negligent on the part of the Polk County
Sheriffs Office in this case. You could go on and on
about it. . . . They took a coincidence and magnified that
into a capital case. And they are asking you to kill a man
on coincidence. . . . The first witness that you saw was
Mrs. Turman, who was a pathetic figure; who worked and
struggled all of her life to build what little she had,
the little furniture store; and a woman who was robbed,
sexually assaulted, and then had her husband slaughtered
before her eyes, by what would have to be a vicious animal.
And this murderer ran after him, aimed again, and this poor
kid with half his brains blown away. . . . Its the work
of an animal, theres no doubt about it. So they come on
up here and ask Citrus County people to kill the man. You
will be instructed on lesser included offenses. . . . The
question is, do they have enough evidence to kill that man,
enough evidence? And I honestly do not think they do.37
In United States v. Grady,38 this Court indicated that
regardless of who initiated the argument as to command policies,
the military judge has a sua sponte duty to give a curative
instruction.
However, this Court distinguished Grady in United
States v. Kropf.39
Again, in Robinson,40 the Supreme Court held that the
prosecutors direct reference to the defendants failure to
testify was not error because it was in response to the defense
counsels argument that the government would not let the
defendant testify.
In the instant case, the opening statement that defense
counsel made and the cross-examination of the agent, Deal, were
37
38
39
40
Id. at 179 nn.5-8 (citations and quotation marks omitted).

15 M.J. 275 (C.M.A. 1983)
39 M.J. 107, 109 (C.M.A. 1994).
485 U.S. at 32.
18

far from single passing comments.41
The courts have recognized
the door may be open by either side.
See, e.g., Shafer v. South
Carolina, 532 U.S. 36, 37-39 (2001) (finding that the

prosecutors closing argument that Shafer and his two
accomplices might come back opened the door to show future
dangerousness and required an instruction of life without
parole); United States v. Chance, 306 F.3d 356, 386-87 (6th Cir.
2002) (holding that once defense counsel attempted to paint the
picture of the appellant as a good law enforcement officer, the
prosecution was entitled to adduce some evidence to rebut
[that] implication).
The defendant may not use his
constitutional rights as a shield to prevent the Government

from contradicting the untruths and reasonable inferences that
the fact finders could logically draw from the defense crossexamination.42
The prosecutions argument concerning the rights warnings,
invocation of the rights, and termination of the interrogation
was clearly fair rebuttal to show that Appellants confession
was not coerced.
Certainly, it rebutted the defenses theory
from the beginning of the trial, thus defense counsel did not
object.
Although the trial counsels comments implying that
Appellants failure to consult with an attorney was proof of

41
See Turner, 39 M.J. at 262.

United States v. Gilley, 56 M.J. 113, 125 (C.A.A.F. 2001)
(Crawford, C.J., concurring in part).
42
19

guilt went beyond fair rebuttal, the error was harmless beyond a
reasonable doubt, in light of the strength of the Governments
case, which was supported by the testimony of two witnesses and
Appellants admission.
In addition, we must consider all of the
trial counsels comments in the context of a response to the

defense case that was presented.
The comments were harmless
beyond a reasonable doubt.

CONCLUSION
While I agree with the majority as to the disposition of
Issues I and II, I disagree with the majoritys analysis of both
issues.
I would affirm the decision of the lower court.
no merit in either issue.
I find
I also write separately to
disassociate myself from this Courts analysis of Issue II,

which is based on its prospective rule set forth in United
States v. Moreno, 63 M.J. 129, 135-41 (C.A.A.F. 2006), and its
misapplication of the Barker v. Wingo, 407 U.S. 514, 530 (1972),
test.
See Moreno, 63 M.J. at 144 (Crawford, J., concurring in
part and dissenting in part).
20

EFFRON, Judge (concurring in part and in the result):
I concur in the lead opinion except for Part III, which
addresses post-trial delay.
Because any error was harmless
beyond a reasonable doubt, we need not reach the question of

whether Appellant has suffered a denial of due process from any
delay.
2006).
See United States v. Allison, 63 M.J. 365, 371 (C.A.A.F.

BAKER, Judge (concurring in part, dissenting in part, and
concurring in the result):
The defense theory of coercion opened the door to rebuttal.
Fair rebuttal included the Governments argument that when
Appellant said he wanted to see a lawyer, he did not in fact see
a lawyer.
This suggested for the purposes of rebuttal that
Appellant may not have felt the degree of coercion he

subsequently argued compelled him to sign a false confession.
It is also noteworthy that Appellant, not the Government,
initially opened the door to this line of reference.
That is not all trial counsel did.
Trial counsel also
stated [i]f he was innocent, the government is arguing, he

would have gone and seen a lawyer, and used that shield.
That
is a bridge too far, for it does not address and rebut the claim
of false confession, nor was it fair response to defense
counsels argument.
It was improper comment on the right to
counsel as evidence of guilt or innocence, not lack of coercion.

See United States v. Riley, 47 M.J. 276, 279 (C.A.A.F. 1997)
(quoting United States v. Moore, 1 M.J. 390, 391 (C.M.A. 1976)).
While it is true that a person who confesses to a crime they did
not commit falsely confesses, that does not mean that any
argument addressed to innocence rebuts a claim of false
confession.
In our system, the exercise of the right to counsel
is not proof of guilt or innocence.

Since Appellant did not open that door, trial counsels
argument was not fair rebuttal.
It was obvious error.
The
principle at stake is fundamental to a system of justice

premised on the right to counsel and the adversarial role of
lawyers.
Therefore, this Court should not duck the issue, but
should say so.

Nonetheless, I conclude that this error was harmless beyond
a reasonable doubt for the reasons stated in the lead opinion.

United States v. Haney, C.A.A.F. (2006)

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United States v. Haney, C.A.A.F. (2006)

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UNITED STATES, Appellee

This opinion is subject to revision before final publication.

United States v. Haney, No. 05-0047/MC

Chief Judge GIERKE delivered the opinion of the Court.

We granted review of one

issue assigned by Appellant and specified a second issue.1

In the unique factual

context of this case, even if we assume error in the trial

The granted issue is:

This Court specified the following issue:

10 U.S.C. 831 (2000).

United States v. Haney, No. 05-0047/MC

resulted in over seven years of appellate delay.

this issue in light of our recent holding in United States v.

that the extraordinary unexplained delay resulted in a due

In light of this conclusion, we hold

that that any deficiency by appellate defense counsel at the

COMMENTARY ON APPELLANTS ARTICLE 31, UCMJ, RIGHTS

BACKGROUND AND TRIAL DEVELOPMENTS

Appellant was suspected of drug misconduct.

Sergeant (MSgt) Crecilius, a Criminal Investigation Division

At the outset of this interview,

Appellant waived his Article 31, UCMJ, rights, agreed to talk to

63 M.J. 129 (C.A.A.F. 2006).

United States v. Haney, No. 05-0047/MC

About three hours later, Appellant on his own initiative

Staff Sergeant (SSgt) Deal, an

investigator with the CID, began a second interrogation of

Appellant waived his Article 31, UCMJ, rights and

confessed to wrongfully using marijuana on one occasion.

The defense proffered

the theory that Appellant fabricated his confession to drug use

This was in violation of Articles 107 and 112a, UCMJ, 10

United States v. Haney, No. 05-0047/MC

In his opening statement, the trial defense counsel

stated to the panel:

testimony concerning Appellants

signed confession to one use of marijuana, and testimony from

SSgt Deal testified that he gained

information that Appellant, as well as other members of

this information, SSgt Deal interrogated Appellant on June 20,

SSgt Deal testified that he properly advised Appellant of

At trial, defense counsel did not make a motion to suppress

United States v. Haney, No. 05-0047/MC

This line of questioning related to alleged

conditional promises of leniency that interrogators made to

testified that MSgt Crecilius explained Appellants five

Appellant stated that he denied smoking

marijuana at that point, and requested an attorney.

MSgt Crecilius did not testify, but on cross-examination, SSgt

United States v. Haney, No. 05-0047/MC

fingerprints and his photograph, and he returned to his barracks

Appellant further testified that the investigators

threat that he would be placed into confinement if he did not

Trial counsel argued:

[Appellant] says he gave a statement to avoid

Appellant stated: I didnt want to end up in confinement so I

United States v. Haney, No. 05-0047/MC

Referring to the adversarial trial setting, the Supreme

In both Robinson9 and Lockett v.

Ohio,10 the Supreme Court reaffirmed the principle that

both these cases, the Supreme Court held that a prosecutors

United States v. Robinson, 485 U.S. 25, 33 (1988).

United States v. Haney, No. 05-0047/MC